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Limiting Corporate "Rights": Lessons from the Daniel Pennock Democracy School

By Joel Schoening

Joel reports on his recent attendance at a Democracy School session; the Community Environmental Legal Defense Fund has held over 150 Democracy Schools to date and plans to offer more - eds.

A legal battle over corporate claims to be treated as persons with accompanying constitutional rights has been going on for over 100 years in the U.S. At stake is the ability of corporations to use "free speech" and other rights accorded to citizens to exercise enormous power over the political process, and to intimidate citizens who challenge them on environmental and other issues.

Those on the front lines of the struggle, like Thomas Linzey and Ben Price of the Community Environmental Legal Defense Fund (CELDF), often cite 1886 as the year in which the current battle began. That was the year corporate lawyers for Southern Pacific Railroad successfully argued in front of the Supreme Court that corporations, as groups of people, are entitled to the equal protections of the 14th Amendment to the Constitution, and should therefore be considered "persons" under the law. In an additional 60 Supreme Court cases argued over the next 120 years, the court found protections for "corporate personhood" in every imaginable article of the Constitution and the Bill of Rights, even though these documents do not contain the words "corporation" or "limited liability." Corporations have now amassed an impressive arsenal of rights. In fact, one could argue that corporations have more rights than individuals since individuals can be held liable for their actions, but the people that make up corporations are now entitled to rights, but not liability. Today, corporations and their lawyers wield these rights as protection from pesky citizens who dare attempt to limit corporate use of property. Whether a corporation wants to dump toxic sludge next to your home, or donate millions to their favorite politician, the average citizen has little power to stop it because the court says that corporations are people whose money is equal to speech, and whose property is sacrosanct.

It's been over a century since the courts first began awarding such rights to corporations, but over the last several years a few brave citizens have been mounting an organized response. I first engaged with some of them in State College, PA, where I attended a Daniel Pennock Democracy School that was held in cooperation with the Pennsylvania Association for Sustainable Agriculture. The School is named for a 14-year-old who died as a result of his exposure to land applied sewage sludge that was poured across the street from his house. His death inspired a community response, but what the community discovered, was they it had little power to regulate local land uses.

Democracy Schools like the one I attended are inspiring more citizens to fight back by taking control of their local government, asserting their own human rights and the rights of nature, and stripping corporations of their so-called "personhood." For example, in Halifax, VA, the Town Council recently voted unanimously to ban "corporate chemical and radioactive bodily trespass" . In Donegal Township, PA, a municipal ordinance stripped corporations of their "personhood". In Tamaqua, PA, the Borough Council went a step further by passing a local ordinance explicitly recognizing the rights of nature, and granting citizens the right to bring suit against people or "state actors" ( e.g. corporations) who trample the rights of nature.

The other students in my Democracy School were farmers, academics, local professionals, students, and activists. What we learned was not a simple civics lesson on democratic participation. Rather, we learned that the organizing model upon which the aforementioned success stories are based came out of a history of struggle, and a great deal of organizing. More specifically, the democracy school emerged from the cooperation of Thomas Linzey, Executive Director of the CELDF, Richard Grossman, founder of Program on Corporations, Law, and Democracy (POCLAD), and their experiences working to help communities resist locally unwanted land uses (sometimes referred to as LULUs) like industrial hog farms, mines, or quarries.

As Linzey tells it, prior to 2003 the typical story ran like this: CELDF would receive a phone call from someone representing a group of citizens concerned about some corporate LULU and CELDF would spring into action. Primarily, this "action" constituted challenging the process through which the corporation received its permit from the state in a court of law. As a result, CELDF became quite skilled in analyzing permit applications, and compiled a great record of courtroom success challenging these applications. CELDF would then return to the community, announce the judgment, and the citizens would celebrate the slaying of the evil corporate dragon. Unfortunately, this process rarely stopped the LULU. The corporation would simply submit a corrected application for new permit. Generally, it would be flawless since CELDF had done the work of pointing out all the errors and the LULU would become a reality given that CELDF and the concerned citizens had exhausted their ability to legally resist the permit process. Worse yet, the corporation would list the costs of the court case as a necessary cost of business, and write it off their taxes. In essence, communities were paying corporations damages for attempting to protect their own interests and the interests of their local ecosystems. As Linzey himself realized, "We were winning cases, but losing in the community."

A new strategy eventually emerged from CELDF's work in Wayne Township, PA. The beginning of the story follows the typical trajectory. A group of citizens was organizing to resist the location of a hog farm in their community. But this time, instead of fighting the permit process, CELDF and the local residents discussed finding another way to fight off the corporate hog farm. What they came up with could be likened to a "Three Strikes" law for corporate behavior. CELDF got busy writing up a new piece of municipal law, and the community put it into action. No corporation with a record of breaking environmental law would be permitted to locate its hog farm in Wayne Township. Although real success in this case was limited because the corporation simply moved to the next township over, CELDF and the people of Wayne Township had set a new precedent for themselves and come to a very important realization. If local governments, as representatives of local citizens, wanted to place a check on corporate behavior, it could be done, but only by going outside of typical regulatory and permit issuing process. Municipalities could successfully resist corporate power, but only if they could write local ordinances empowering citizens to defend themselves against the interests of far-flung corporate investors.

This new model for writing local ordinances to control corporate behavior hinged on two compelling observations: (1) the most successful liberal social movements in U.S. history such as women's suffrage, abolition, and the Equal Rights Amendment, succeeded largely because they were founded squarely on ideas of human rights and demanded the equal application of those rights; (2) environmental regulation assumes environmental degradation. Regulations such as the permit process only allow us to decide how much mercury is acceptable in a river, or how much carbon may be emitted form a tail pipe or a coal refinery. Regulation does not allow us to entertain the idea that nature, humans included, has inalienable rights. These observations are not by themselves revolutionary, but they are significant when you consider that the vast majority of environmental activists are not agitating to define the rights of nature, or even the rights of humans to be free from harms caused by corporate environmental irresponsibility. Most environmental activism to date has focused entirely on regulation. Thus, Linzey maintains, the only people being regulated by environmental law are environmentalists.

Based on these two observations, CELDF, its organizers, the Daniel Pennock Democracy School and its graduates, and community activists around the country are actively building a new environmental movement that puts real power to define human and environmental rights in the hands of local communities. They are doing so based largely on a little known piece of legislation known in 43 states as "home rule." It provides a method through which citizens can legally rewrite their municipal constitution through an initiative process. Why is this important? Overwhelmingly, municipalities govern under the state, meaning that they act only in ways that are prescribed by state law, which severely restricts local citizens' power to act on many matters of local importance. Imagine, for example, that a quarry wants to locate in your town. Once the state permits that quarry, your town has no power; you have to go through the state to exercise oversight. However, if you live in a home rule state (see celdf.org for a list), your city could rewrite its relationship with the state and exercise more control over local land use issues.

So far, CELDF and the Democracy School have experienced considerable success organizing local communities to protect themselves under home rule and local ordinances. CELDF has held over 150 Democracy Schools in 24 states and now has over 2,100 graduates. In Pennsylvania alone, CELDF estimates that at least 350,000 people are now living in communities that have passed ordinances recognizing human and environmental rights and limiting "corporate personhood." All this success, however, comes with one big footnote: so far, corporations have chosen not to mount a serious campaign against these local ordinances and instead have chosen to relocate their operations. When corporations begin to fight back, the landscape of the local environmental rights struggle is likely to change. Linzey described it as a race. Who will be more organized when corporations begin to fight back? Can CELDF and Democracy School graduates organize so many local municipalities that there will be real pressure on the system to accept their new model? Or will the courts find more rights for corporations in the U.S. Constitution?

This question nagged me as I sat in the Democracy School, but I was none the less impressed and inspired by their work. Furthermore, it was the most eye opening educational experience I have had in years, and it left me feeling hopeful that regular people still do have the power to create the sustainable communities they want. If you want to join in the struggle to curtail corporate influence, I highly recommend attending a Democracy School. Better yet, find a local issue that you can organize around, and start working to revoke corporate personhood in your town. For more information on CELDF and the Daniel Pennock Democracy School visit the CELDF website at www.celdf.org.